LRD Booklets January 2018

Case law at work (14th edition)

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Introduction

Introduction 
 [pages 4-6] (435 words)

This is the 14th edition of Case Law at Work, the LRD’s key source of information on recent employment law cases. It contains clear summaries and ...
Open access

Chapter 1

1. The employment law system
 [ch 1: page 5] (417 words)

Nearly all tribunal claims must be brought within three months (less one day) of the matter complained of. Tribunals can extend the time limit in an ...
Subscribers only

UNISON victory secures abolition of tribunal fees
 [ch 1: pages 6-7] (745 words)
R on the application of UNISON v The Lord Chancellor [2017] UKSC 51


Wrong to impose a deposit order that a claimant has no money to pay 
 [ch 1: pages 7-8] (571 words)
Hemdan v Ishmail & Anor UKEAT/0021/16/DM


COT3 settlement agreement wording did not rule out subsequent claim

 [ch 1: pages 8-9 ] (459 words)
Department for Work and Pensions v Brindley UKEAT/0123/16/JOJ



Tribunal rules only allow Acas to issue one EC certificate per matter 

 [ch 1: pages 10-11] (512 words)
HM Revenue & Customs v Garau UKEAT/0348/16/LA



Naming two respondents on the same Acas EC Notification Certificate did not invalidate claim 
 [ch 1: page 11] (358 words)
De Mota v ADR Network & Anor UKEAT/0305/16/DA


Naming director instead of company as employer on EC Form was not a “minor error”

 [ch 1: page 12] (315 words)
Giny v SNA Transport Ltd UKEAT/0317/16/RN


Multi-claimant equal value claims under attack for using same claim form 
 [ch 1: pages 12-14] (855 words)
Farmah and others v Birmingham City Council UKEAT/0286/15/JOJ, UKEAT/0289/15/JOJ, UKEAT/0009/16/JOJ, UKEAT/0059/16/DM &UKEAT/0227/16/JOJ


Chapter 2

2. Categories of worker — employment status 
 [ch 2: page 15] (166 words)

Most statutory employment rights depend on someone’s “employment status”. Access to key minimum rights, such as the national minimum wage, ...
Subscribers only

Uber drivers are workers
 [ch 2: pages 15-18] (1,303 words)
Uber BV v Aslam & Ors UKEAT/0056/17


Plumber had ‘worker status’ and was not self-employed 

 [ch 2: pages 18-19] (577 words)
Pimlico Plumbers Ltd & Anor v Smith [2017] EWCA Civ 51


Lorry drivers were not self-employed
 [ch 2: pages 19-21] (770 words)
RS Dhillon and GP Dhillon Partnership v HMRC [2017] UKFTT 017 (TC)


Chapter 3

3. The employment contract
 [ch 3: page 22] (360 words)

The employment contract sets out the terms and conditions under which work is to be done and paid for.
 ...
Subscribers only

Employer not liable for assault by MD on co-worker after staff party 

 [ch 3: pages 22-23] (495 words)
Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB)



Teacher’s suspension fundamentally breached duty of trust and confidence 
 [ch 3: pages 24-25] (534 words)
Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (QB)


Chapter 4

4. Pay and conditions 
 [ch 4: page 26] (191 words)

This Chapter highlights the key rulings in 2017 concerning pay and conditions, including the national minimum wage, holiday pay and rest breaks.
 ...
Subscribers only

No need to ask permission to take a rest break to bring claim for failing to provide breaks

 [ch 4: pages 26-27] (621 words)
Grange v Abellio London Ltd (Working Time Regulations) [2016] UKEAT/0130/16/DA


Claims for national minimum wage while on call or sleeping in
 [ch 4: pages 27-30] (1,135 words)
Focus Care Agency Ltd v Roberts UKEAT/0143/16/DM, Frudd and another v Partington Group UKEAT/0244/16/DM, Royal Mencap Society v Tomlinson-Blake UKEAT/0290/16/DM 



Holiday pay should include regular voluntary overtime
 [ch 4: pages 30-31] (523 words)
Dudley Metropolitan Borough Council v Willetts & Ors UKEAT/0334/16/JOJ


Chapter 5

5. Unions, collective organisation and industrial action
 [ch 5: page 32] (320 words)

This Chapter sets out the key rulings in 2017 concerning collective rights, including important rulings on the statutory recognition of trade unions ...
Subscribers only

Appeal court rejects attempt to use EU law to stop UK strike 

 [ch 5: pages 32-33] (593 words)
Govia Gtr Railway Ltd v The Associated Society of Locomotive Engineers and Firemen [2016] EWCA Civ 1309



Permanent ban on strikes by prison staff
 [ch 5: pages 34-35] (491 words)
Ministry of Justice v The Prison Officers Association [2017] EWHC 1839


Sixth form college strike pay calculation must use 1/365 formula
 [ch 5: page 35] (375 words)
Hartley and others v King Edward VI College [2017] UKSC 39


Statutory right to negotiate over pay, hours and holidays

 [ch 5: pages 36-37] (785 words)
British Airline Pilots Association v Jet2.Com Ltd [2017] EWCA Civ 20


Post-Trade Union Act ballot paper need not specify individual dates or frequency of industrial action 
 [ch 5: pages 37-38] (383 words)
Thomas Cook Airlines Limited v British Airline Pilots Association [2017] EWHC 2253

Major victory for GMB at Lidl distribution warehouse
 [ch 5: pages 38-40] (668 words)
Lidl Limited v (1) CAC (2) GMB [2017] EWCA Civ 328


Tribunal backs safety rep’s right to time off for training

 [ch 5: pages 40-41] (658 words)
Bennett v London Borough of Camden, London Central Employment Tribunal Case No. 2200243/2017


No compensation awarded for safety rep’s injury to feelings

 [ch 5: pages 41-42] (452 words)
Rowe v London Underground Ltd [2016] UKEAT/0125/16/JOJ


Refusal of employment due to union membership includes union activities
 [ch 5: pages 42-44] (650 words)
Jet2.com Ltd v Denby [2017] UKEAT 0070/17


Chapter 6

6. Discrimination
 [ch 6: pages 45-46] (448 words)

Discrimination law is found in the Equality Act 2010 (EA10). The EA10 lists nine protected characteristics: age; disability; gender reassignment; ...
Subscribers only

Employer’s failure to link misconduct to disability was discriminatory
 [ch 6: pages 46-48] (897 words)
City of York Council v Grosset [2016] UKEAT/0015/16/BA


Tribunal wrong to rule that Type 2 diabetes could not be a disability

 [ch 6: pages 48-49] (573 words)
Taylor v Ladbrokes Betting & Gaming Ltd UKEAT/0353/15/DA


Multiple choice test discriminated against applicant with Asperger’s

 [ch 6: pages 49-50] (418 words)
The Government Legal Service v Brookes UKEAT/0302/16/RN 



Teacher’s long-term stress not a disability
 [ch 6: pages 50-52] (808 words)
Herry v Dudley Metropolitan Council UKEAT/0100/16/LA and UKEAT/0101/16/LA



Not discriminatory to discipline minister over homophobic preaching

 [ch 6: pages 52-54] (790 words)
Trayhorn v The Secretary of State for Justice UKEAT/0304/16/RN



Claim for time off to attend religious festivals not made ‘in good faith’

 [ch 6: pages 54-55] (412 words)
Gareddu v London Underground Ltd [2016] UKEAT/0086/16/DM


Headscarf ban legal in firm with neutral dress policy

 [ch 6: pages 55-56] (620 words)
Achbita, Centrum voor Geliijkheidvan Kansen en voor racismebestrijiding v G4S Secure Solutions Case C-157/15



Requirement for mother to work after 5pm was discriminatory

 [ch 6: pages 56-58] (794 words)
Fidessa PLC v Lancaster [2017] UKEAT/0093/16/LA


BA part-time contract terms less favourable than full-time contract 

 [ch 6: pages 58-60] (989 words)
British Airways v Pinaud UKEAT/0291/16/DA


Failure to carry out adequate breastfeeding risk assessment was direct sex discrimination 
 [ch 6: pages 60-61] (521 words)
Elda Otero Ramos v Servicio Galego de Saúde, Instituto Nacional de la Seguridad Social Case C‑531/15


No need for claimants to show “reason why” PCP causes particular disadvantage 

 [ch 6: pages 61-64] (1,178 words)
Essop & Ors v Home Office (UK Border Agency), Naeem v Secretary of State for Justice [2017] UKSC 27


Same-sex couples have same survivor pension rights as others 

 [ch 6: pages 64-65] (544 words)
Walker (Appellant) v Innospec Limited and others (Respondents) [2017] UKSC 47



Pay protection measures that perpetuated discrimination struck down 
 [ch 6: pages 66-67] (793 words)
Glasgow City Council v UNISON claimants, HB claimants and GMB claimants [2017] CSIH 34 


Store staff can use distribution workers as equal pay comparator

 [ch 6: pages 67-69] (727 words)
ASDA Stores Ltd v Brierley & Ors UKEAT/0011/17/DM



School segregation policy was unlawful
 [ch 6: pages 69-70] (650 words)
HM Chief Inspector of Education, Children’s Services and Skills (Appellant) v The Interim Executive Board of Al-Hijrah School (Respondent) [2017] EWCA Civ 1426 On appeal from: [2016] EWHC 2813 (Admin)


Initial burden of proof is on claimant in claims of direct discrimination 
 [ch 6: pages 71-72] (637 words)
Ayodele v Citylink Ltd & Anor [2017] EWCA Civ 1913


Chapter 7

7. Whistleblowing
 [ch 7: page 73] (96 words)

Whistleblowing laws are found in the Public Interest Disclosure Act 1998 (PIDA). The Act gives workers specific rights, including the right not to ...
Subscribers only

Senior cardiologist unfairly dismissed over protected disclosures

 [ch 7: pages 73-75] (826 words)
Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401


Court of Appeal adopts broad interpretation of ‘public interest’ test 

 [ch 7: pages 75-77] (937 words)
Chesterton Global Ltd & Anor v Nurmohamed & Anor [2017] EWCA Civ 314 



Chapter 8

8. Dismissal 
 [ch 8: pages 78-79] (481 words)

* Employees dismissed unfairly can go to a tribunal if they have been working for at least two years. Some specific types of dismissal do not require ...
Subscribers only

Use of confidential material in disciplinary didn’t justify dismissal

 [ch 8: pages 79-81] (823 words)
Portsmouth Hospitals NHS Trust v Corbin [2017] UKEAT/0163/16/LA and UKEAT/0164/16/LA



Lapsed warning could count in dismissal decision

 [ch 8: pages 81-82] (613 words)
Stratford v Auto Trail VR Ltd [2017] UKEAT/0116/16/JOJ




Senior manager’s negligent failure to intervene was gross misconduct 

 [ch 8: pages 82-83] (661 words)
Adesokan v Sainsbury’s Supermarkets Ltd [2017] EWCA Civ 22



Doubts about nurse’s true identity could justify dismissal

 [ch 8: pages 84-85] (843 words)
Ssekisonge v Barts Health NHS Trust [2017] UKEAT/0133/16/LA


School too quick to dismiss teacher on long-term sick leave

 [ch 8: pages 85-88] (1,032 words)
O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145


Chapter 9

9. Redundancy
 [ch 9: page 89] (187 words)

A redundancy situation exists where an employer closes or intends to close the workplace or reduce the number of employees doing a particular kind of ...
Subscribers only

Instruction to employees to move office based on mobility clause not reasonable
 [ch 9: pages 89-91] (985 words)
Kellogg Brown & Root (UK) Ltd v (1) Fitton UKEAT/0205/16 and (2) Ewer [2017] UKEAT/0206/16


Usual test of fairness applies to redundancy in restructuring

 [ch 9: pages 91-93] (772 words)
Green v London Borough of Barking & Dagenham [2016] UKEAT/0157/16/DM


Correct tests for suitable job and unreasonable refusal to take it

 [ch 9: pages 93-94] (600 words)
Dunne v Colin & Avril Ltd (t/a Card Outlet) UKEAT/0293/16/DA


Nautilus entitled to be consulted on worldwide redundancies affecting UK crew
 [ch 9: pages 95-96] (659 words)
Seahorse Maritime Ltd v Nautilus International [2017] UKEAT/0281/16/LA


UNISON can seek protective award for parks police

 [ch 9: pages 96-98] (1,056 words)
Vining v London Borough of Wandsworth [2017] EWCA Civ 1092



Chapter 10

10. Business transfers and contracting out
 [ch 10: page 99] (153 words)

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are intended to protect the rights of employees on the transfer of ...
Subscribers only

Group’s ‘principal purpose’ had changed by transfer date 

 [ch 10: pages 99-100] (684 words)
Tees Esk & Wear Valleys NHS Foundation Trust v Harland & Ors and Danshell Healthcare Ltd [2016] UKEAT/0173/16/DM


No duty on transferee to state if bonus was contractual or not

 [ch 10: pages 101-102] (709 words)
Born London Ltd v Spire Production Services Ltd UKEAT/0255/16/LA


Does a share sale mean a TUPE transfer has taken place?
 [ch 10: pages 102-103] (588 words)
ICAP Management Services Ltd v Berry & Anor [2017] EWHC 1321


Chapter 11

11. Surveillance and monitoring 
 [ch 11: page 104] (135 words)

With the spread of digitisation, privacy laws are of growing importance in the workplace. As well as the human right to privacy under Article 11 of ...
Subscribers only

European Court of Human Rights sets limits to employers’ right to monitor staff emails

 [ch 11: pages 104-106] (856 words)
Barbulescu v Romania Application No. 61496/08